Ajendra Nath Vs. State Of Madhya
Pradesh [1963] INSC 116 (23 April 1963)
23/04/1963 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION: 1964 AIR 170 1964 SCR (3) 289
ACT:
Criminal Trial-Property recovered not proved
to be stolen property-Acquittal by Sessions Judge-State appeal against
few-Allowed against the appellant-Finding on the question reversed-High Court,
if could record its own findings-Assistance in concealment of stolen
property-Scope of-Indian Penal Code (Act 45 of 1860), ss. 120-B, 379, 414.
HEADNOTE:
Five bales, containing woollen shawls and
mufflers dispatched from Kanpur by the British India Corporation Ltd.
and another bale despatched from Haimanpur to
Kanpur, were loaded in wagon at Itarsi railway station. The lock of the wagon
was found broken open and on checking at nagpur the aforesaid bales were found
missing. On search, certain articles including some torn labels were recovered
from the house of one Gopinath. The same day the appellant and few other
persons were found by the Police,coming out of Gopinath's house whose front
door was locked. They were taken to the Police Station and at the instance of
the appellant the police recovered woollen shawls, mufflers, bed sheets and
certain house breaking implements from different places of that house. After
investigation, six persons including the appellant were put on trial before the
Magistrate for several charges under ss. 120-B, 379 and 414 of the Indian Penal
Code and except one Birendra Nath, all were convicted. On appeal, all the
convicted persons were acquitted by the Additional Sessions Judge, on further
appeal by the State, against the acquittal of Gopinath and the appellant, the
High Court allowed the appeal only against the appellant with respect to the offence
under s. 414 of the Indian Penal Code. On appeal by special leave, this Court
held :
Held that the mere fact that the other
accused persons were acquitted on the ground that the property recovered was
not proved to be stolen property did not preclude the State from appealing
against the acquittal of the appellant against 290 whom there is better
evidence. The State could challenge the correctness of the findings of the
Additional Sessions Judge about the property being stolen property and the High
Court could record its own findings on that question.
Held further, that it is not necessary for a
person to be convicted under s. 414 Indian Penal Code that another person must
be traced out and convicted of an offence of committing theft. The prosecution has
simply to establish that the property recovered is stolen property and that the
appellant provided help in its concealment and disposal. The circumstances of
the recovery in the present case sufficiently prove that the appellant had
assisted in the concealment of the stolen property and had thus committed the
offence under s. 414 Indian Penal Code. The appeal therefore, must be
dismissed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 226 of 1960.
Appeal by special leave from the judgment and
order dated July 28, 1960 of the Madhya Pradesh High Court in Criminal Appeal
No. 385 of 1959.
A. R. Choubay and Naunit Lal, for the
appellant.
I. N. Shroff, for the respondent.
1963. April 23. The judgment of the Court was
delivered by RAGHUBAR DAYAL J.-This appeal, by special leave, is directed
against the order of the High Court of Madhya Pradesh reversing, on State
appeal, the order of the Additional Sessions judge, Hoshangabad, acquiring the
appellant, and convicting him of an offence under s. 414 I. P.C.
Five bales, containing woollen shawls and
mufflers despatched from Kanpur by the British India Corporation Ltd., Kanpur
Woollen Mills Branch, Kanpur, and another bale despatched from 291 Haimanpur to
Kanpur were loaded at Itarsi railway station on September 18, 1957, in Wagoa
No. C.R. 325. The lock of the wagon wag found broken open at Pandhurna Railway
Station at about 1.00 a.m. on September 20, 1957. on checking at Nagpur the
aforesaid bales were found missing. One of the bales despatched from Kanpur was
found lying the next morning near the railway line between railway stations
Jaulkheda and Multai.
On September 23, 1957, the house of one Gopi
Nath, at Multai, was searched and certain articles, including some torn labels
were recovered from that house.
The same day, the police found the appellant
and a few other persons come out of Gopi Nath's house at Betul, whose front
door was locked. Subsequently, these persons were taken to the police station,
where the appellant made a statement showing readiness to point out the stolen
property. At his instance, the police recovered from different places of that
house, woollen shawls, mufflers, bed-sheets and certain house-breaking
implements. These recoveries were made on September 23 and 24.
As a result of investigation, six persons
were put on trial in the Magistrate's Court. Ajendra Nath, appellant, was
charged under ss. 120-B, 379 and 414, I.P.C. Babu Ram was charged under ss.
120-B and 379 I.P.C. Ram Prasad and Gyarsi were charged under s. 120-B read with
s. 879 I.P.C., Gopinath under s. 120-B read with s. 414 I.P.C. and Birendranath
under s. 414 I.P.C. The learned Magistrate acquitted Birendra Nath and
convicted the other accused of the offence under s. 120-B read with s. 379
I.P.C., except in the case of Gopinath, who was convicted of the offence under
s. 120-B read with s. 414 I.P.C. Ajendra Nath was also convicted of the offence
tinder s. 414 I.P.C.
292 On appeal, the learned Additional
Sessions judge, Hoshangabad, acquitted all these convicted persons. He held
that the property recovered was not proved to be stolen property and that the
alleged conspiracy was not proved.
The State filed an appeal against the
acquittal of Gopinath and Ajendra Nath. The High Court dismissed the appeal
against Gopinath and the appeal against Ajendra Nath for the offence of
conspiracy. It however allowed the appeal against Ajendra Nath with respect to
the offence under s. 414 I.P.C. It is against this order that this appeal has
been filed by Ajendra Nath, appellant.
Ajendra Nath did not question the recovery of
the various articles from Gopi Nath's house at Betul at his instance.
He did not claim the property to be his own,
but stated that it was not stolen property. The main contention for the
appellant in this Court has been that these recovered article; were not proved
to be stolen property. Tile articles consisted of those said to have been sent
by the British India Corporation Ltd., Kanpur Woollen Mills Branch, Kanpur, and
bed-sheets sent by the firm of V.S.N.C. Narsingha Chettiar, which carries on
business of wholesale Hand Loom Cloth at Karur.
The invoices relating to the four bales sent
by' the Kanpur Woollen Mills give the details of the shawls and mufflers the
bales contained. A very large quantity of these has been recovered. Out of 95
shawls and 63 mufflers, as many as 80 shawls and, 43 mufflers had been
recovered.
Similarly, out of 10 pairs of bed-sheets
stolen, 8 pairs have been recovered. The absence of any adequate explanation
for the presence of such a large quantity of articles similar to those proved
to have been despatched by the Kanpur Woollen Mills or by the Karur company,
the recovery of these articles within 293 a few days of the theft, the presence
of silk and paper labels of Kanpur Woollen Mills on most of the shawls and
mufflers recovered and of certain manuscript writings on the labels of the bed
sheets by P.W. 24 Krishnamurthi, brother of P.W. 16, Venkat Raman, who does the
Karur business, have been taken into consideration by the High Court for coming
to the finding that the property recovered was proved to be stolen property.
These circumstances cannot be said to be such which would not justify the
finding arrived at.
The main contention for the appellant however
is that it has not been definitely established from the evidence of Kunzru, P.
W. 10, that the shawls, mufflers recovered were manufactured by the Kanpur
Woollen Mills and were despatched in the bales which were subsequently stolen.
Kunzru's evidence does fall short of establishing that the shawls and mufflers
recovered were manufactured by the Kanpur Woollen Mills. He has not identified
the recovered shawls and mufflers as those manufactured by these mills. In
fact, he was not even shown all the shawls and mufflers recovered.
He was shown by the Police Inspector,
Government Railway Police, two lois (two shawls) and two mufflers. He got them
examined by the textile expert and, on the report of the expert, gave the
certificate that they appeared to be manufactured by the Woollen Mills of
Kanpur. That expert has not been examined in Court and therefore Kunzru's
statement alone fails to establish that these shawls and mufflers were
manufactured by these mills. However, it is not open to doubt that they were
manufactured by these mills when most of them had sewn silk labels of these
mills and quite a good number of them had even paper labels indicating that
they were manufactured by these mills. There, is no reason to suppose and in
fact no such suggestion has been made that these labels had been put on these
articles by someone for the purpose of 294 deception. We therefore consider
that the finding that these shawls and mufflers were the manufacture of Kanpur
Woollen Mills is correct.
It was also contended for the appellant that
it was not proved that these shawls and mufflers were in the bales which were
despatched by the Kanpur Woollen Mills and that the gate passes and the
invoices produced by Kunzru were not proved as persons who wrote them had not
been examined.
Kunzru produced the originals of these
documents. He is the salesman of the Kanpur Woollen Mills. His
cross-examination in no way indicates that his statement about the genuineness
of the invoices and gate passes was questioned in cross examination. There is
nothing to suppose that the invoices and gate passes produced in Court did not
correctly represent the articles placed inside particular bales to which
specific numbers were given and that those bales were despatched from the Mills
in accordance with the gate passes. In this connection reference was made to
the fact that five of the shawls recovered were of violet colour and no shawl
of such a colour was mentioned in any of the invoices. There can be a
possibility of a mis-description in the invoices, There can be a possibility of
the violet shawls being the property stolen in some other incident.
The fact remains that even the violet shawls
are not claimed by the appellant as his own. So, we do not consider any force
in this contention for considering the finding of the High Court defective
about the property recovered to be stolen property.
With respect to the identity of the
bed-sheets, there is the evidence of P.Ws. 16 and 24. P.W. 16 deposed that he
had supplied 10 pairs of bed-sheets to a certain customer who disowned the
bale. Thereupon he asked the Station Master, Ahimanpur to return the parcel to
Karur. He recognized the various sheets to be of his firm which they had 295
despatched to Ahimanpur. He further deposed that before despatching the goods
they paste the firm labels on them.
He stated that his younger brother Krishna
Murti had noted size-number and pattern over these sheets in his handwriting,
as he happened to be at home on vacation.
Krishna Murti, P.W.24, admits that certain
labels on the bed-sheets were in his hand-writing, that he wrote them under
instructions of his brother and that he had not written sirnilar numbers on any
other bed-sheets. He however stated subsequently that he did such type of
markings casually, on occasions, and that the Sub-Inspector had also got him
write the size, pattern etc., on certain other blank labels of the shop as
well.
The learned Additional Sessions judge did not
rely on these statements and felt that the Investigating Officer might have got
those markings on the labels of the recovered articles during the
investigation. The High Court thought that there was no reason for doubting the
correctness of the statements of these witnesses and for suspecting that the
writings on the labels were obtained during the investigation. No question was
put to P.W. 24 about the police making him write on the labels on the recovered
articles. In fact, according to the witness, labels with his writings were
shown to him for purposes of recognition and he recognized those writings to be
his. The police took his writings on blank labels for purposes of comparison.
We therefore see no good reason for considering the finding of the High Court
with respect to the bed-sheets recovered to be stolen property to be wrong.
It was also contended that it was not open to
the High Court to record a finding about the recovered property to be stolen
property when the Government had not appealed against the other co-accused who
were acquitted on the basis of the finding that the property recovered was not
proved to be stolen 296 property. We do not see any force in this contention.
The mere fact that the learned Additional Sessions judge acquitted the other
accused on the ground that the property recovered was not proved to be stolen
property did not preclude the State from appealing against the acquittal of the
appellant against whom there is better evidence for establishing that he was in
possession of the stolen property than the evidence was against the other
co-accused.
The State could challenge the correctness of
the findings of the learned Additional Sessions judge about the property being
stolen property and, consequently, the High Court can record its own finding on
that question.
Lastly, it was also urged that even if the
identity of the articles recovered with the articles stolen be established, no
offence under s.414 I.P.C. is made out against the appellant as the other
accused have been acquitted and it is not known whom the appellant is supposed
to have helped in concealing the stolen property. Section 414 I.P.C. makes it
an offence for a person to assist voluntarily in stealing or disposing of or
making away with property which he knows or has reason to believe to be stolen
property. It is not necessary for a person to be convicted under s.414 I.P.C.
that another person must be traced out and
convicted of an offence of committing theft. The prosecution has simply to
establish that the property recovered is stolen property and that the appellant
provided help in its concealment and disposal. The circumstances of the
recovery sufficiently make out that the property was deliberately divided into
different packets and was separately kept. May be that the property failing to
the share of a particular thief was kept separately. It was recovered from
several different places in the same house. These places included an iron safe
and an underground cellar. The evening before, several persons, including the
appellant, were found to be coming out of the back door of the house which had
its front door 297 locked. The appellant also knew the whereabouts of the
property inside the house of his maternal grandfather. He attempted to sell a
few mufflers a day before the recoveries were made. He was seen arriving at the
house, during the night, in a car with some persons and then removing property
which looked like bales from the car to the house. All these circumanstances go
to support the finding that he had assisted in the concealment of the stolen
property and had thus committed the offence under s,414 I.P.C.
We therefore see no force in this appeal and,
accordingly, dismiss it.
Appeal dismissed.
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